Credit Markets Frozen As Mortgage Market Melts Down - Commercial Bankruptcy Filings Rise

    What started as a residential real estate crisis is causing a shortage of funds throughout the Capital Markets. The Federal Reserve is doing an effective job regulating risk free rates, but businesses don’t borrow at these rates. Today the Federal Funds Rate is 2.20%. Unfortunately this is not solving the problem of providing dollars to businesses. Capital providers are scared and sitting on the sidelines. Commercial bankruptcy filings are on the rise. In fact bankruptcy filings of all types are on the rise.

    In order to induce lenders to invest in alternatives to the Treasury’s Risk Free Securities, Businesses pay a risk premium on borrowed funds; this Risk Premium is the difference between the Risk Free Rate and the actual rate paid. The Risk Premium is the compensation for lending to you instead of buying US Treasury Securities (Risk-Free). Commercial loan rates are not going down. The fact is lenders are scared; Risk Premiums are expanding and underwriting criteria is tightening up. A year ago when a middle market company needed to restructure financially it was much easier to recapitalize whether it was bank financing or selling securities. On top of that, you had plenty of private capital investors with money burning a hole in their pockets; commercial bankruptcy filings were at a low. The world is different today and the problem is at a point that the government is going to have to step up and provide risk capital. The downside of this is who knows what the unintended consequences of government intervention will be.

    Remember during the last banking crisis during the first half of the 1990s things were not resolved until the government formed the Resolution Trust Corporation which took over (and subsequently liquidated) the portfolios of bankrupt lenders. If the holders of today’s pools of loans cannot efficiently liquidate problem assets the country is in for a painful digestion period that this analyst believes will last through 2010 perhaps through 2012.

    We may have just seen the tip of an iceberg. News reports today included the revelation that credit default swaps (insurance against a bad receivable) on the debt of CIT Group (the largest independent commercial finance company in the U.S.) are more expensively priced than the Bear Stearns' swaps were just before the government arranged rescue of Bear Stearns.

How Is Bankruptcy Under Chapter 11 Different From A Case Filed Under Chapter 7 Or Chapter 13?

    Chapter 11 is the known at the Reorganization Chapter; Chapter 7 is called the Liquidation     Chapter; and Chapter 13’s title is Adjustment of Debts Of An Individual With Regular Income.

    As I wrote earlier the goal of a Chapter 11 Case is more often than not the rehabilitation of a troubled business entity, although individual filers are not uncommon.

    Chapter 7. In a chapter 7 case a trustee is appointed, who gathers and sells the debtor’s nonexempt assets for the benefit of the creditors. The notion of chapter 7 is that creditors of the same class will be treated equally; and the debtor, who will retain limited exempt assets, will get a fresh start.

    Chapter 13. Chapter 13 is similar to chapter 11, as the goal is for an individual debtor to confirm a plan that repays all or a portion of the debtor’s obligations. Chapter 13 is available only to individuals (no corporations, LLCs, or partnerships). An individual that operates a business as a sole proprietor (a dba is OK) may be eligible to file for bankruptcy under chapter 13.
    To be eligible to file under chapter 13 the individuals unsecured debts must not exceed $307,675 and the debtor’s secured debts may not exceed $922,975. These thresholds are periodically adjusted for inflation.

    Chapter 11. The goal of a chapter 11 cases is for a rehabilitated debtor to emerge from bankruptcy through the confirmation and implementation of a plan of reorganization. The plan is basically a contract between the various interested parties (creditors, debtor, secured lenders) that controls how the debtor’s affairs are to be conducted.

    An advantage of chapter 11 is that by allowing an enterprise to continue in business, value will be maximized for the benefit of the debtor’s unsecured creditors. Generally a going concern is worth more than a business that is in a state of forced liquidation. Often chapter 11 will be used as a platform to sell an operating business. The proceeds are then used to repay creditors according to priority.

UPI Reports: 6,000 U.S. Retail Stores Predicted To Close In 2008

This may be the understatement of a lifetime. The bankruptcy filings of Movie Gallery (aka Hollywood Video); Lillian Vernon; and The Sharper Image have started us off on what may be a robust year of retail failures. With consumers tapped out, what will fall next? Or can the slack be picked up by offshore money taking advantage of a cheap dollar?